Tort reform? Try tort expansion

posted at 5:59 pm on September 11, 2009 by Ed Morrissey

Barack Obama offered this wan “olich branch” to Republicans during his health-care overhaul speech to the joint session of Congress on Wednesday. After spending most of the speech deriding his opposition, Obama finally got to the subject of tort reform, which the White House had promised Obama would pursue in his speech to get Republicans on board. Here is how enthusiastic Obama was for the idea:

Finally, many in this chamber – particularly on the Republican side of the aisle – have long insisted that reforming our medical malpractice laws can help bring down the cost of healthcare. I don’t believe malpractice reform is a silver bullet, but I have talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs.

So I am proposing that we move forward on a range of ideas about how to put patient safety first and let doctors focus on practicing medicine. I know that the Bush administration considered authorizing demonstration projects in individual states to test these issues. It’s a good idea, and I am directing my Secretary of Health and Human Services to move forward on this initiative today.

First, there are already plenty of studies showing that malpractice abuse comprises anywhere between 2% and 10% of all medical costs today. For a $2 trillion a year industry, even the low end would mean $40 billion a year in cost savings, and $400 billion over the ten-year period that Obama uses as his scale. That’s five times what Obama got the pharmaceuticals to concede in order to bring ObamaCare’s costs down, in comparison. The question here should be why the pharmaceuticals had to knuckle under to the White House while the trial lawyers get off scot-free.

As Kimberly Strassel notes in the Wall Street Journal today, the answer is — because Congress wants to make it even easier for lawyers to exploit malpractice claims, and in new and dangerous ways:

During the markup of a bill in the Senate Health Committee, Republicans offered 11 tort amendments that varied in degree from mere pilot projects to measures to ensure more rural obstetricians. On a party line vote, Democrats killed every one. Rhode Island senator and lawyer Sheldon Whitehouse went so far as to speechify on the virtues of his tort friends. He did not, of course, mention the nearly $900,000 they have given him since 2005, including campaign contributions from national tort powerhouses like Baron & Budd and Motley Rice.

Even Senate Finance Chair Max Baucus, of bipartisan bent, has bowed to legal powers. The past two years, Mr. Baucus has teamed up with Wyoming Republican Mike Enzi to offer legislation for modest health-care tort reform in states. That Enzi-Baucus proposal had been part of the bipartisan health-care talks. When Mr. Baucus released his draft health legislation this weekend, he’d stripped out his own legal reforms. The Montanan is already in the doghouse with party liberals, and decided not to further irk leadership’s Dick Durbin ($3.6 million in lawyer contributions), the Senate’s patron saint of the trial bar.

Over in the House the discussion isn’t about tort reform, but about tort opportunities. During the House Ways & Means markup of a health bill, Texas Democrat Lloyd Doggett ($1.5 million from lawyers) introduced language to allow freelance lawyers to sue any outfit (say, McDonald’s) that might contribute to Medicare costs. Only after Blue Dogs freaked out did the idea get dropped, though the trial bar has standing orders that Democrats make another run at it in any House-Senate conference.

It says everything that Mr. Obama wouldn’t plump for reform as part of legislation. The president knows the Senate would never have passed it in any event. Yet even proposing it was too much for the White House’s legal lobby. Mr. Obama is instead directing his secretary of health and human services to move forward on test projects. That would be Kathleen Sebelius, who spent eight years as the head of the Kansas Trial Lawyers Association.

How likely will a positive report come from tort-reform pilot projects run by the former executive director of a state TLA? About as likely as getting Democrats to vote to impose them even if they do succeed. It’s not just because the trial lawyers provides tons of cash to Democrats, although that’s certainly true. Trial lawyers afflict the very entities that the liberal wing of the Democratic Party likes to demonize — the rich, corporations, the rich, doctors (remember Tonsil Vultures and Foot Rustlers?), the rich, etc. It’s an ideological as well as financial marriage.

Obama’s not involved in writing the legislation anyway. He’s made himself irrelevant enough that he can toss in a couple of lines about the subject without having it change the situation one iota. But even if was involved in it, Obama has been pretty clear about his opposition to tort reform — as he was just three months ago when he spoke to the AMA:

Now, I recognize that it will be hard to make some of these changes if doctors feel like they’re constantly looking over their shoulders for fear of lawsuits. I recognize that. (Applause.) Don’t get too excited yet. Now, I understand some doctors may feel the need to order more tests and treatments to avoid being legally vulnerable. That’s a real issue. (Applause.) Now, just hold on to your horses here, guys. (Laughter.) I want to be honest with you. I’m not advocating caps on malpractice awards — (boos from some in audience) — (laughter) — which I personally believe can be unfair to people who’ve been wrongfully harmed.

So what was his solution to high malpractice abuse costs? In effect, he said that doctors need more schooling:

But I do think we need to explore a range of ideas about how to put patient safety first; how to let doctors focus on practicing medicine; how to encourage broader use of evidence-based guidelines. I want to work with the AMA so we can scale back the excessive defensive medicine that reinforces our current system, and shift to a system where we are providing better care, simply — rather than simply more treatment.

If doctors just listened to those government panels on comparative effectiveness that ObamaCare creates and stop putting patient safety somewhere south of “first,” they wouldn’t have anything to worry about! I’m surprised the AMA didn’t boo him off the stage for that remark.

Don’t expect tort reform from this administration. Tort expansion is much more likely.

Jesus Christ, that’s it, he just admitted it. Either follow the guidelines set down by my panel or be faced with lawsuits as your non-approved procedures will be prima facie malpractice. Enjoy the poorhouse, suckers.

Caps on malpractice awards are not the answer. Those still do not prevent suits and do not give doctors less of an incentive to order unnecessary defensive tests and procedures, they just reduce their insurance premiums a little.

What is needed is:

–A “loser pays” tort system for medical injuries

–The right of doctors and patients to execute waivers before routine non-emergency treatment guaranteeing no lawsuit.

–Any insurance reform should include the ability to sell a “no-tort” health insurance policy at much lower cost, under which the policyholder agrees not to sue the doctor or hospital or drug company.

Let the market work and allow patients to discover the true cost of medical litigation. If patients want to participate in a malpractice lottery so that they might get luck and win a million dollars, they should have to pay much higher prices for the insurance and care.

Wow, how are we ever going to counter this kind of crap? I am getting so sick of daily stories of leftist czars, fruit cake advisers, and a lying President.It is so frustrating that we can’t seem to do anything about it. I know tea parties and marches are a good start, but how are we going to take them on? Sorry for the rant, I think it is probably the day that has brought me down.

Jesus Christ, that’s it, he just admitted it. Either follow the guidelines set down by my panel or be faced with lawsuits as your non-approved procedures will be prima facie malpractice. Enjoy the poorhouse, suckers.

Anybody that really believes Obama will do anything that could be the least bit uncomfortable for trial lawyers are out of their minds. This guy will say anything but you should believe nothing he says.

–Any insurance reform should include the ability to sell a “no-tort” health insurance policy at much lower cost, under which the policyholder agrees not to sue the doctor or hospital or drug company.

rockmom on September 11, 2009 at 6:08 PM

I like this idea. The Libs will scream about “the ghettoization of health insurance” but they’ll scream no matter what. Another idea I’ve seen that goes beyond just malpractice is to make punitive damages payable to the jurisdiction and not the plaintiff, as if it were a fine.

Obama is a hopeless case. He talks and talks and really has no idea what’s really going on. He’s become or always was a ‘sounds good–lets try this and see how it flies’–he doesn’t bother to research anything or become familiar with any issue because either he’s too lazy or he sees his role as salesman rather than CEO or both. He is, frankly, a man I wouldn’t trust to decide whether is was raining or not. Prefer a take charge Prez and this guy falls far short of the mark.

I usually don’t comment here, but I’m a big free market advocate. Tort reform would actually be a bad thing in a free market. It would be one of the major checks on malpractice along with insurance companies and media. It’s absurd to act like gov’t would be a better check on malpractice. Torts are a perfectly good way to limit malpractice and serve as a disincentive against it. It’s not tort reform that’s the problem. It’s lawyers’ influence with gov’t, giving them virtually monopoly status. Tort reform wouldn’t be much of a problem if we had a free market and broke up the AMA’s monopolistic hold on the medical market, so to speak. If we could do that, prices would drop de facto. We’re barking up the wrong tree here. End tax oppression first is what I say.

As unemployment and home foreclosures and mortgage defaults grow, these polticized buffoons, from the Delusionist-In-Chief on down, worry about something low the list of vital priorities for the national security and stability of our Republic like Health Insurance Coverage Reform.

Maybe the reason for all the czars is so that obama doesn’t have to think about or learn about anything. The lackeys do all the work and send him a memo–preferably a short memo so that his free time will not be frittered away with doing his job.

Everyone wants “tort reform” until a loved one is a victim of malpractice.

bschmalfeldt on September 11, 2009 at 6:20 PM

It’s called frivolous lawsuits. That’s what’s needed in Tort reform. Besides tort reform, Doctors that lose their licenses in one State should not be allowed to start another practice in another State.

It’s not about denying the right to sue, its about the validity of the suit.

–The right of doctors and patients to execute waivers before routine non-emergency treatment guaranteeing no lawsuit.

***

rockmom on September 11, 2009 at 6:08 PM

I don’t disagree with you on much, but this, IMO, is not appropriate. Professional service providers (doctors, lawyers) in specialized areas shouldn’t be able to contract for their own exoneration. Sure, doctors can to some extent rely on informed consent for surgery and risky procedures, but contracting away causes of action for negligence and worse doesn’t seem appropriate.

I might add a plug for special courts staffed by judges with expertise in these kinds of case. We might even consider limiting these cases to bench trials and eliminating jury trials.

Everyone wants “tort reform” until a loved one is a victim of malpractice.

bschmalfeldt on September 11, 2009 at 6:20 PM

There is a risk with most medical procedures. Yes, doctors sometimes make mistakes and when that happens, there should restitution. Many people want no risk medical procedures when, at the present, it is just not possible.

Exactly. It’s an attempt to rein in jackpot justice. I say make economic and medical care recoveries generous, allow punitives in egregious cases, but limit the “pain and suffering” and other non-economic awards.

Everyone wants “tort reform” until a loved one is a victim of malpractice.

bschmalfeldt on September 11, 2009 at 6:20 PM

Not everyone. I am a physician and my brother’s death the day after Christmas last was preventable. Mistakes were made and those responsible will have to pay, as they should. I won’t get a nickel – any money will go to his wife and kids, as it should. I am still very much in favor of tort reform.

I know a whole group of people that will be happy to relieve Acorn of their census duties. They will be in Washington DC tomorrow. No need to give you their address. Just be at Freedom Plaza at 9am and your sure to meet them!!!

This is one where I part ways with the GOP. CA has had a pain and suffering cap on medical malprac for years and premiums have done nothing but go up. Plus, if one of these quacks does you harm, good luck finding a lawyer to take your case.

“Loser pays” only hurts middle class people’s ability to bring a suit b/c they actually have something to lose. The judgement proof plaintiff, however, will be emboldened to bring suit b/c if they win, they’ll get attorney’s fees on top of their award. Thus, in many suits, “loser pays” will actually work to the ADVANTAGE of the judgment-proof plaintiff and to the DISADVANTAGE of small businesses.

If I were a doctor, I would refuse to treat lawyers or their kin. Let them suffer and die for a few generations. Perhaps they’ll just resort to suing the Catholic Church, either way these parasites can learn to feed off something else.

That sounds good on paper, but I have a question on the applications. Does the plaintiff (read, “Their Ambulance-Chasing Shyster”) name a requested award, or is that value arrived at by the jury? I presume it currently varies by State. What’d be needed in addition to “loser pays” is to require that the plaintiff make known up front how much award they are looking for, instead of undefined and undeclared “punitive damages.” That would lend real teeth to the “loser pays” system. Expanding that policy to all lawsuits would also eliminate the recurring “jackpot” serial-suitfilers and other frivolous suits.

How different from liberals do you sound when you suggest tort reform to limit the free market’s ability to regulate itself? How often do we hear from liberals this or that would work better if we only had “sensible” regulation? This is what leads to big gov’t, and we hear this on a small gov’t board! This is how liberals will always defeat you. You advocate big gov’t in certain arenas but not others. So, the only difference between libs and cons is what type of big gov’t you want.

Trial lawyers afflict the very entities that the liberal wing of the Democratic Party likes to demonize — the rich, corporations, the rich, doctors (remember Tonsil Vultures and Foot Rustlers?), the rich, etc. It’s an ideological as well as financial marriage.

You forgot to mention the fact that they produce nothing – another attribute of the profession that is dear to the left.

Does that include our illustrious leader because after all, he’s a scumbag lawyer as well?

larvcom on September 11, 2009 at 7:32 PM

Constitutional “scholars” whose study of the sacred document gave them angst at it’s draconian limitations on tyrannical power, and restricts not at all their greedy grasping at our very lives, are at the very top of the list of evil-doers that must be dealt with.

We have been there before thanks to Ted Kennedy. It is called an HMO. I know well how those work. I was having a problem with unexplained fevers. My doctor sent me to specialist for blood test that could not be performed in the office. That was as far as it went since I had apparently had all the test that I needed in their opinion or was allowed under their quota system. My doctor resigned in protest. He was one of those doctors who as BHO says he wants; that put patient safety first, but he really doesn’t. I went on and lived with the fevers and trying to figure out why I was having an ever increasingly difficult time dealing with the daily demands of my teaching. I saw other doctors; ones like Obama wants; the ones that give you a moment of face time, takes a guess at the problem, hand you a presription and the bill. A doctor who finds nothing wrong can not be held responsilbe for doing something wrong. The only difference under Obamacare is that you only see a nurse of a physicans assistent since there will always be a shortage of doctors.
In the end I was unable to continue to teach and that I had a serious medical condition could not be ignored. I went though a lot of doctors and endured about every test they have to give, many of them probably medically unneccersay, but neccesary to cover the doctors buts. It was my oncologist that found what was wrong. A simple shot given once a month would probably prevented the damage that is not fixable now. If that HMO doctor had been able to run just one more battery of blood test, he might have found it. I am a long way to from 65, but if Obama has his way, I guess I will be having that end of live conference, me and my dog.

how to encourage broader use of evidence-based guidelines. I want to work with the AMA so we can scale back the excessive defensive medicine that reinforces our current system,

What I get from this quote, now that I’ve read the death panel sections of proposed reform bills, is that doctors will not be allowed to try whatever they can try to help those truly ill. I find it ironic that we have all these TV shows that glorify doctors and nurses and their “throw the kitchen sink at it” theory of treatment when the reality will be that we no longer have options. The gov will produce a handbook that says “Treatment ABC is most often successful at treating “Condition XYZ” so you will be reimbursed for this treatment, nothing more. Oh, and it it doesn’t work, the patient will sue.

Risk assessment is the right of the informed patient, not a bureaucrat or a handbook.

The Democrats suck, but the Republicans aren’t much better. They could have done something about tort reform when they were in power, but didn’t. It’s one thing to propose reform when you’re the minority party and there isn’t a chance in Hell of it passing, quite another when you have the capability to do it and don’t. That’s part of the reason why they’re now in the minority.